Excerpt: - .....formed the subject-matter of issue no. 3, which ran as follows:--'is the property in suit the joint family property and are the plaintiffs entitled to half share in the same? onus on plaintiffs.'at the conclusion of the trial, the court below came to the conclusion that the plaintiffs had failed to prove that parties constituted a joint family at the time the property in suit was acquired, or that the property was acquired out of joint family funds, or with the help of nucleus supplied by joint family property. in view of this finding, the plaintiffs were non-suited. hence, this appeal.5. arguments in this appeal were heard, at length, at chamba in the beginning of the last month. due to unavoidable circumstances, however, the appeal could not be disposed of earlier. i now proceed.....

Judgment:

Ramabhadran, J.C.

1. This is a plaintiffs' appeal against the judgment and decree of the learned District Judge of Chamba, dismissing their suit for partition and separate possession of one-half share of immovable property, situate at Surkhigali and Banikhet, district Chamba.

2. The following pedigree table will show the relationship of the parties:--

RAM DAYAL

|

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| | |

Hira Lal Nihal Chand Maya Ram

| | (Issueless)

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| | | | | | | |

Kanhya Lal Aminchand Sant Mela Kirshan Hans Milkhi mehar

| | Ram Ram Das Raj Ram chand

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| | | | | Dwarka Nath

Amarnath Jagannath prem Ram Pran

Nath Nath Nath

As would be obvious from the pedigree table, parties are descendants of a common ancestor, named Bam Dayal. Plaintiffs' case was that they and the defendants formed a joint Hindu family and the property in suit, though entered in the revenue papers in the name of Hira Lal and his son, Kanhya Lal, constituted joint Hindu family and, therefore, was liable to partition.

3. The suit was resisted by the defendants, inter alia, on the ground that their ancestor, Hira Lal, separated from his brothers, Nihal Chand and Maya Ram, some 50 or 60 years ago. Leaving his home in Hoshiarpur district in the company of Kanhya Lal, defendant No. 1, Hira Lal, migrated to Dalhousie, where both of them started their separate business, which they subsequently extended to Chamba district. In this way, out of their earnings, they acquired considerable immovable properties at Surkhigali, Banikhet and Dalhousie.

The plaintiffs have no interest in these properties. In 1947, the plaintiffs set up a false claim to the property in suit and took illegal possession of a portion thereof, regarding which proceedings in court were pending.

4. The main point for determination, before the learned District Judge, was:--whether the parties constituted a joint Hindu family and, if so, whether the property in suit belonged to that family? A subsidiary question, which depended upon the finding on the above issue, was:--whether the plaintiffs were entitled to one-half of the suit properties? These two questions formed the subject-matter of issue No. 3, which ran as follows:--

'Is the property in suit the joint family property and are the plaintiffs entitled to half share in the same? Onus on plaintiffs.'

At the conclusion of the trial, the Court below came to the conclusion that the plaintiffs had failed to prove that parties constituted a joint family at the time the property in suit was acquired, or that the property was acquired out of joint family funds, or with the help of nucleus supplied by joint family property. In view of this finding, the plaintiffs were non-suited. Hence, this appeal.

5. Arguments in this appeal were heard, at length, at Chamba in the beginning of the last month. Due to unavoidable circumstances, however, the appeal could not be disposed of earlier. I now proceed to deliver judgment.

6. Learned counsel for the appellants argued, firstly, that in framing issue No. 3, the trial Court has erred in placing the onus of proof on the plaintiffs. He urged that there was a presumption in favour of the jointness of the family and that the property in suit belonging to that family and, consequently, the onus should have been placed upon the defendants to prove that the family was not joint and the plaintiffs had no share in the property in suit. Reliance was placed, in this connection, on Sm. Charandasi Debi v. Kanai Lal Moitra, (S) AIR 1955 Cal 206 (A), where following Appalaswami v. Suryanaravanamurti, AIR 1947 PC 189 (B), a Division Bench of the Calcutta High Court pointed out that:

'Under the Mitakshara law proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that item of property is joint to establish the fact, but where it is established that the family possessed some joint property which from its nature and relative value may have formed the necleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.'

This ruling will help the appellants only if they can show that the suit properties were acquired out of a necleus supplied, by joint family property. This, as I shall show subsequently, has not been established here. Reference was also made to Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 (C), where the same principle was upheld.

The plaintiffs obviously were not entitled, to assume that the suit properties owed their origin to the necleus supplied by the joint family and on that basis, contend that the onus should be placed upon the defendants. I am, therefore, of the opinion that the onus of proof was rightly placed upon the plaintiffs.

7. In the next place, learned counsel for the appellants contended that the trial Court has not correctly appreciated the evidence on the record and has also erred in not applying the relevant provisions of law. Mr. Bhandari stressed that Hira Lal, Nihal Chand and Maya Ram, sons of Ram Dayal, formed a joint Hindu family and, therefore, there was a natural presumption that they, as descendants, continued to constitute a joint Hindu family and property possessed by them also continued joint in nature, unless and until a partition between them was proved.

Reference was made, in this connection, to the provisions of Section 233, Mulla's Hindu Law. The District Judge has reproduced Section 233(1), in extenso. After doing that, he has pointed out that on the showing of Kishan Dass, plaintiff, himself, parties have been messing separately since 1927 or 1928 and their business has also been separate since 1927.

Further, when any of the brothers got married, he started keeping his earnings separately. Hira Lal died in 1914 and Nihal Chand in 1939, while Aminchand died in 1940. The defendants' contention was that Hira Lal and his son, Kanhya Lal, left their home in Hoshiarpur district some 50 or 60 years ago and migrated to Dalhousie and started work as contractors.

According to the defendants, Hira Lal then separated from his brothers and the family ceased to be joint. If the defendants' contention be correct, then it would follow that properties acquired by Hira Lal and Kanhya Lal in their new abode would be separate properties and the plaintiffs would have no interest therein.

8. Let us go through the evidence and see how far the plaintiffs have succeeded in discharging the onus, which lay heavily upon them. The plaintiffs have not denied that Hira Lal and Kanhya Lal migrated to Dalhousie several years ago. According to Chhaju Ram (D.W. 2), Kanhya Lal and Hira Lal were in Dalhousie from 1894 onwards, while Rai Bahadur Sohan Lal (D.W. 8) saw the former there, for the first time, in 1897. It would also appear that Kanhya Lal used to work as a contractor sometimes independently and at other times in partnership with D. C. Khanna and Sons.

9. The point for consideration is: Whether the plaintiffs had any share in the business carried on by Hira Lal and Kanhya Lal at Dalhousie and neighbouring places? (After reviewing the evidence, the judgment proceeded): There remains the oral testimony of Kishan Dass, plaintiff, who, naturally, is an interested witness. During the course of his cross-examination on 20-11-1951, he admitted that the entire property in dispute, with the exception of 1 or 2 shops, had been acquired prior to 1914 A.D.

It is also not disputed that the property was entered in the revenue records in the names of Hira Lal and Kanhya Lal alone. Ex. P. N., certified copy of extract from the General Land Register, Dalhousie Cantt., shows that eight houses Were held by Kanhya Lal under a perpetual lease, since 1919, except in the case of house No. 88/48.

10. The statement of Kishan Dass, plaintiff, which was recorded in two instalments, needs careful examination as he has deposed on a variety of facts. In his attempt to show that parties continued joint, he has produced two mortgage-deeds, Ex. P. G. and Ex. P.H.P.G. is a mortgage-deed executed by Hira Lal and Nihal Chand on 2-10-1877 A. D. in favour of one Bansi for a sum of Rs. 272/-.

Kishan Dass' contention is that the Haveli, which was mortgaged then, has now been redeemed and is in the joint possession of the parties. Similarly, Ex. P.H. is an usufructuary mortgage-deed executed by one Lehnu in favour of Kanhya Lal on 19-3-1901 A.D. Kishan Dass claims that although the deed was in favour of Kanhya Lal alone, he (i.e. Kishan Dass) and the co-plaintiffs are in possession thereof. In my opinion, these two documents do not help the plaintiffs, because they relate to a period long before Hira Lal and Kanhya Lal left Hohsiarpur and migrated to Dalhousie.

Kishan Dass next referred to two copies of Khatauni Jamabandis, Exs. P. I and J. The former is a copy of the Jamabandi for the year 1940-41 of village Ganari, Tehsil Una, district Hoshiarpur, while the latter relates to the year 1945-46. It is true that the names of the parties are jointly entered in the cultivator's column, but it is significant that their shares have been clearly specified, i.e. the sons of Hira Lal (Kanhya and Aminchand) took half share, while the other half share went to the sons of Nihal Chand.

Thus, these documents, if anything, go to show separation and not the jointness of the parties. In Harkishan Singh v. Partap Singh, AIR 1938 PC 189 (D), their Lordships of the Privy Council were pleased to remark as follows:

'It is by no means a rare thing that a person makes a statement that he is a member of a joint family with his relatives, but has reasons of his own for making that statement. It is not his statement, but his actings and dealings with the estate, which furnish a true guide to the determination of the question of the jointness or otherwise. According to the Mitakshara law, partition consists in defining shares of the coparceners in the joint property, and a physical division of the property is not necessary.

Once the shares are defined, there is a severance of the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants-in-common.'

11. Reliance was also placed by. Kishan Dass on extracts from Khataunis, Exs, P. K1 to P. K15, in an attempt to establish jointness, his allegation being that in Chamba State, Pattas were entered in the names of the eldest member of the family. A perusal of these extracts would show that Hira Lal's name is entered in some of them and Kanhya Lal's in some others.

In none of them have the names of Hira Lal and Kanhya Lal been entered jointly. Thus, the custom alleged by the plaintiffs is not borne out. Further, these documents do not show when the relevant properties were acquired. (After considering documentary evidence produced by the plaintiffs and also the testimony of the witnesses who were examined by the defendants, the Judicial Commissioner concluded:) In this state of evidence, I feel that the Court below was justified in coming to the conclusion that Hira Lal and Nihal Chand separated more than 50 years ago. The disruption in the family took place, when Hira Lal and Kanhya Lal left their ancestral house in Hoshiarpur and shifted to Dalhousie.

In this connection, reference may be made to the following rulings:--

(a) Haria v. Bhindru AIR 1950 Him-P. 8 (E). This ruling has been relied upon by the learned District Judge. Since the Court below has reproduced the material portion of this decision in extenso, I do not deem it necessary to quote it all over again. Suffice it to say that: (as held therein):--

'In order to show separation, it may not be necessary to prove a formal partition, for it may be that a formal partition was never effected and if effected, it cannot be proved. In such a case the only means of proving partition is by proof of separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness. Separate appropriation would be very good evidence of a tacit agreement amongst the members or amongst their ancestors to hold that property according to their separate shares.' (b) Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225 (P). This has also been referred to by the learned District Judge. There, the facts were that two brothers lived in separate houses & paid separate chowkidari taxes. The shares of the two brothers were defined in the Khatas. The produce of the land was also divided between them half and half. Under these circumstances, their Lordships felt that 'though there was no partition by metes and bounds, the two brothers were divided in status and enjoyed the usufruct of the properties according to their respective shares.'

12. There remains one other point, which was stressed by learned counsel for the appellants. His contention was that the properties in suit were acquired out of a nucleus supplied by joint family funds. I concur with the Court below that this plea was not, at all, satisfactorily made out. Reliance was placed, in this connection, on certain entries contained in a book of account, Ex. P.W. 5/Q, pertaining to Samvat 1955 and standing in the names of Hira Lal Nihal Chand.

Doubt was expressed on behalf of the defendants as to whether this account was kept in the regular course of business. No doubt, Kishan Das alleges that these entries were in the hand of his father, Nihal Chand. Undoubtedly, Kishan Das is an interested witness. In the absence of adequate corroboration, his statement cannot be relied upon.

Further, these entries do not clearly show whether the amounts shown against the name of Hira Lal were sent to him or received by him. The same remarks apply to the accounts, Ex. P. W. 5/U and P.W. 5/X. There is considerable force in the observation of the learned District Judge that even if we assume these accounts to be correct, it is not clear if the sums shown as received by Kanhya Lal represented Nihal Chand's investment at Dalhousie or his (Kanhya Lal's) share of old joint family funds. Earlier, I have already referred to the supply of potatoes worth Rs. 146/-mentioned in Ex. P.W. 5/V.

13. Learned counsel for the respondents, vehemently, argued that there were no joint family funds, which could have served as nucleus for the acquisition of properties at Dalhousie, Surkhigali and other places. In this connection, he invited my attention to copies of Jamabandis, Exs. P. I. and P.J. These show that the area of the land held jointly by the parties in village Canari measured only 2 bighas and 12 biswas.

Further, mortgage-deed, Ex. P.G., of 1877 A.D. shows that the family was in debt because they had to mortgage their Haveli in favour of Bansi for the comparatively small sum of Rs. 272/-. In Vythianatha Iyer v. C.V. Varadaraja Iyer, AIR 1938 Mad 841 (G), a Division Bench of that High Court pointed out that:

'The mere existence, of nucleus of ancestral property will not by itself raise a presumption that the subsequently acquired properties of a member are joint family properties and hence will not shift the burden of proving that the properties, are separate properties on the person alleging it, to be so. To shift this burden on him, it must be proved that the nucleus was of such a character, as, taking into consideration the surrounding, circumstances, could have led to the subsequent acquisitions with its help.

The presumption is against blending and it is only natural for a person to keep his self-acquired properties separate from the joint family properties, meeting the expenses of the joint family from the joint family property. This being so, the mere failure of a member to keep separate accounts of his earning will not raise a presumption in favour of blending.'

In Section 233 of Mulla's Hindu Law, the learned author remarks that:

'When a nucleus of joint family property is proved or admitted, a presumption arises that the whole of the property of the joint family is joint, including any acquisition by a member of the joint family. But no such presumption would arise, if the nucleus is such that, with its help, the property claimed to be joint, could not have been acquired. In order to give rise to the presumption, the nucleus must be such that with its help, the property claimed to be joint could have been acquired.'

In the present case, the existence of such a nucleus is neither proved nor admitted. Consequently, this plea also breaks down.

14. In view of all that has been said above, I concur with the findings of the learned District Judge to the effect that the plaintiffs, failed to prove (1) that parties were a joint family at the time the properties in suit were acquired, or (2) that the property in suit was acquired out of joint family funds, or (3) that the properties to question were acquired with the help of a nucleus supplied by joint family property. Consequently, the plaintiffs were rightly non-suited. The appeal, therefore, must fail.